Dominions.83 This raised the vexed question of the relations between Irish nationalism and non-white regions of the Commonwealth. The Irish, it would seem, did not want to be too thoroughly connected with peoples widely perceived as inferior.84 In any case, this was not a major issue for the Irish Free State, as the matter of settlement was not one which preoccupied the attention of Irish policy makers. Nevertheless, the impact on indigenous races did not act as a spur to voice even the mildest concern. For the Free State, overseas settlement and its related matters were incidental and, therefore, principled observations and objections, if there were any, went unspoken.
Hearne’s membership of this committee probably reflected the fact that he was the most junior of the officials in the Free State delegation. He was appointed to represent the state on a body regarded as unimportant. He was the diplomatic rookie who drew the proverbial short straw and his nomination was a kind of apprenticeship. He did what was required of him: he said little and discharged his duties unobtrusively. The resultant report meant nothing in the Free State. Tellingly, the Free State was not represented on the committee on overseas settlement at the 1930 Imperial Conference.
The 1926 Conference was a success for Irish ministers and officials. This is evident when the November memorandum identifying anomalies is compared with the final report – very many Irish concerns had been addressed. The Balfour Declaration certainly gave cause for much satisfaction. In the Dáil, Desmond FitzGerald asserted that the Conference would ‘be regarded by historians as marking a definite step forward in the development of the individual states of the Commonwealth as distinct political entities in the general society of nations’.85 Listing the various decisions taken by delegates, he stated that relations between Great Britain and the other Dominions were now based on the root principle of equality of status.86
The commitment, competence and hard-work of the civil service advisers were a very significant factor in the success of the Irish delegation. The daily routine of Hearne and his colleagues was demanding and exhausting. They were accommodated in the Hotel Cecil, located between the Thames Embankment and the Strand,87 and here Hearne stayed for thirty-six days.88 The civil servants were virtual prisoners, a fact described by Diarmuid O’Hegarty, secretary to the Executive Council:
The points arising out of the conference and the memoranda which had to be prepared and submitted required careful consideration by the officials from the Department of External Affairs, the Draftsman’s Office [Hearne] and the executive council, who were in constant attendance on the ministers … Daily and even hourly conferences were necessary. Instructions, decisions, and memoranda were urgently required and given. Correspondence had to be attended to without delay. The volume of work was very heavy. During the days which I attended the conference not one of the officials engaged thereon on our staff had the opportunity of taking a walk. They were practically confined to two rooms – one used by the typists and the other employed as a conference room and dining room.89
For John Hearne, the 1926 Conference was an important occasion in his career. It was a significant conference in terms of the constitutional development of the Free State and he had been one of the advisers who had contributed to this development. He was to attend two other conferences – a clear indication that his contribution in 1926 was adjudged valuable by his ministerial and civil service superiors –where he was to play a more important role in terms of the Free State’s continuing constitutional evolution. However, he attended in a different capacity – as legal adviser at the Department of External Affairs.
Appointment as legal adviser, 1929
In 1929, John Hearne was appointed legal adviser.90 Together with two cadets recruited as a result of the first public competition for the Department of External Affairs, he joined an establishment which had endured many difficulties from its inception, not least the belief that its very existence was unnecessary.91 This department was a completely new institution of government, necessitated by the Free State’s constitutional status as a Dominion, and did not enjoy the advantage of the tradition of other offices in the former British administration, which were transferred into government departments, with comparatively little difficulty, on the setting up of the Irish state. During the Dáil debates in 1923 on the Ministers and Secretaries Act, which gave government departments their formal and legal basis, deputies questioned the need for a foreign ministry.92 The threat hanging over it was its possible absorption into the Department of the President. It was not until 1927 that its civil service head, Joseph Walshe, was given the rank of secretary and, by 1929, the threat to its independent existence had been dispelled with the recruitment of a legal adviser and cadets. These circumstances have prompted Dermot Keogh to write that ‘it was possible to speak for the first time of a Department of External Affairs’.93
Conference on the Operation of Dominion Legislation, 1929: Hearne’s memoranda
The Irish government was anxious to continue and expedite the process of transforming the character of the British Commonwealth. The 1926 Imperial Conference and, in particular, the Balfour Declaration had advanced this objective, but to the outside world it still had the appearance of an association dominated by Britain.94 A momentous step in altering this perception was taken at the Conference on the Operation of Dominion Legislation, which had its origins in the 1926 Conference and which, after some delay, was organised for October 1929. Its terms of reference were comprehensive:
To enquire into, report upon and make recommendations concerning
(i)Existing statutory provisions requiring reservation of Dominion legislation for the assent of His Majesty or authorising the disallowance of such legislation.
(ii)(a) The present position as to the competence of Dominion parliaments to give their legislation extra-territorial operation.
(b) The practicability and most convenient method of giving effect to the principle that each Dominion parliament should have power to give extra-territorial operation to its legislation in all cases where such operation is ancillary to provision for the peace, order and good government of the Dominion.
(iii)The principles embodied in or underlying the Colonial Laws Validity Act 1865, and the extent to which any provisions of that act ought to be repealed, amended or modified in the light of the existing relations between the various members of the British Commonwealth of Nations.
In addition to the above, the whole area of merchant shipping was referred to the 1929 Conference in order to ‘consider and report on the principles which should govern, in the general interest, the practice and legislation relating to merchant shipping in the various parts of the Empire, having regard to the change in the constitutional status and general relations which have occurred since existing laws were enacted’.95 The report of the Conference on Dominion Legislation was to be submitted to an Imperial Conference for its consideration.
The purpose and importance of the Conference on Dominion Legislation was explained earlier in 1929 by Patrick McGilligan, Minister for External Affairs, in the course of a Dáil debate on the estimates for his department:
The Commonwealth conception imports no limitation of the internal sovereignty of any of its members, and imposes no restrictions upon the exercise of its external sovereignty by any such member … In the autumn of the present year a committee of experts from every state of the Commonwealth will meet to discuss the formal amendment or modification, or repeal of enactments still on the statute book of the United Kingdom, which are inconsistent with the existing legislative powers of the member states’ parliaments. Our purpose is that whatever remnants there may be of the old order of imperial control will be removed and the last vestiges of the organisation now superseded swept away. The entire legal framework in which the old system of central rule was held together will be taken asunder and will never be put together again. A new legal structure will take its place … The free co-operation which is the basis of the Commonwealth idea … will be clothed in forms which reveal rather than conceal its reality.
McGilligan observed to deputies that ‘the House will realise what an amount of watchful, painstaking and highly technical labour that work involves’.96 John Hearne, as legal adviser at the department, did an immense amount of legal preparation, drawing on what D.W. Harkness has described as ‘his voluminous knowledge of British constitutional history’,97 and his memoranda were to inform,